Emergency Temporary Standards: What they Mean for Businesses

COVID-19 continues to be a focal point for companies across the country. OSHA tried to step up its efforts to combat the spread of COVID-19 in the workplace, announcing an emergency temporary standard (ETS) requiring COVID-19 vaccination or a testing and mask policy for employers with 100+ employees.

But, on January 13, 2022, the U.S. Supreme Court blocked OSHA’s COVID-19 ETS with one exception. The court allowed for the federal government to require vaccinations for healthcare employees at Medicare- and Medicaid-certified providers and suppliers.

While it’s unlikely that OSHA’s ETS will ever take effect, employers should now figure out if they want to implement their own vaccine mandates.

We talked to Jill Schaefer, Director of Content Management at KPA, a provider of Environment, Health & Safety (EHS) and Workforce Compliance software and services, to learn more about what the blocked ETS means and what companies should do about protecting their staff from COVID-19.

Q. What should businesses know about the ETS?

An Emergency Temporary Standard (ETS) is a set of workplace safety rules that OSHA can implement at any time and for a predetermined length of time (usually six months) until a permanent standard is issued. OSHA issues an ETS when it determines that workers could be in grave danger—whether that’s due to COVID-19 or another workplace hazard. An ETS can be challenged and turned down in courts, which we saw happen in January.

Even though the federal ETS was blocked, several states have their own COVID-19 ETS, which eligible companies operating in the state must abide by. Those states include California, Oregon, Colorado, Illinois, New York, New Jersey, Delaware, Massachusetts, Connecticut, Rhode Island and Maine. Businesses should ensure they’re aware of and acting on any testing or vaccination requirements mandated by their state, county or city.

Q. How are companies responding to the rejected ETS?

Across the country, some companies may be relieved that the ETS was blocked.

A recent Kaiser Family Foundation study found that 5% of the unvaccinated workforce population quit their jobs due to employer vaccination mandates. Considering the entire U.S. workforce is about 150 million strong, that could have equated to several million people leaving their jobs if the ETS was upheld—which would have had a big impact, especially on small or medium-sized companies. That would have been on top of an already existing labor shortage.

Businesses should know that, even though the ETS was struck down, OSHA recently issued a statement that it will continue to hold employers accountable for ensuring the safety of their workforces. This means that OSHA will continue to leverage the COVID-19 National Emphasis Program and General Duty Clause citations. In other words, employers can still be liable for any COVID-19 exposure in the workplace.

Q. Some cities and states passed their own COVID-19 vaccination and testing requirements for private sector businesses already. How does the ruling affect those local or state mandates?

With the absence of a federal standard, we anticipate that state regulating agencies will continue to pursue their own COVID-19-related requirements around vaccines, testing, face masks, etc.

For example, New York City issued its own mandate on December 7 that required all private sector employees to be fully vaccinated by December 27. This was the first state to require vaccination in the private sector. Although as of this publication, this mandate was still temporarily blocked by a Manhattan court.

In terms of vaccine mandates, private companies in every state except Montana can require that employees are vaccinated against COVID-19. Although, many states (including Texas, Kansas, Iowa, Utah and more) have restrictions around those mandates, often related to religious or medical objections. Other states (including California, New York, Maine, Colorado, Illinois and more) require COVID-19 vaccination if you work in select industries.

Bottom line: Even though OSHA’s ETS was blocked, companies must still abide by local and state requirements and do their best to keep workers safe from COVID-19 workplace outbreaks.

Q. What should companies do and know now about COVID-19 in the workplace?

Even though OSHA’s ETS was blocked, at KPA we recommend that employers plan and communicate how to protect employees and others in the workplace from COVID-19. Businesses should know that they can still elect to require vaccinations. As such, we recommend the following:

• Gather staff vaccination records: This should be treated as a confidential medical record. Companies should communicate their vaccination policy and how employees should indicate that they received a vaccination, along with supporting documentation. Employers should not ask why an employee is or isn’t vaccinated, as this may be considered unlawful conduct.
• Research COVID-19 testing and vaccination requirement options: If an employer intends to implement testing for unvaccinated or partially vaccinated workers, it’s a good idea to start thinking about how this will look—whether that’s at-home tests, tests at a COVID-19 testing site, etc. Employers should not be unreasonable or make it impossible for an employee to get tested. Best practice is for employers to pay for testing and related supplies when employers require staff to comply, as this can greatly reduce any long-term costs associated with litigation and/or wage and hour claims.
• Establish and clearly communicate policies: Employers should include vaccination, masking policy, testing and time-off to get vaccinated/recover from side effects/etc. Consider working with legal counsel to create these.
• Understand state and local regulations: Some states and localities have paid compensation laws around COVID-19. All businesses, depending on qualifying criteria, must comply with these.
• Identify accommodations: Employers should understand any religious and medical accommodations or exemptions and tell employees how to apply for one.
• Communicate time-off policies: Businesses should comply with payroll laws and provide paid time off and sick leave. State and local regulations may have specific COVID-19 requirements.
• Establish OSHA reporting and recording processes: Any COVID-19-related deaths that likely stemmed from the workplace must be reported within eight hours. Hospitalizations must be reported within 24 hours. Businesses should have a system setup to record and report these.

In any case, we recommend that companies always speak with competent local legal counsel before taking any action.

Q. What does the blocked ETS mean for workplace safety programs?

Dr. Fauci recently said that the best-case scenario is that COVID-19 will become endemic in the U.S. and the workplace, meaning that it circulates but doesn’t disrupt society. For now, COVID-19 is and will continue to be a significant threat to workplace safety across the country.

That’s why a formal workplace safety and compliance program is paramount to keep staff safe. Regardless of a federal ETS, businesses should ensure their safety programs include any requirements around vaccination, testing, etc. But just updating your workplace safety programs isn’t the end-all-be-all.

An effective safety program—one that mitigates workplace accidents and exposure to COVID-19—requires dedication to achieving the organization’s safety goals. Management must ensure that everyone adheres to safety policies. If your company doesn’t already have one, we recommend creating a dedicated EHS team, with specific roles assigned to each member to ensure the organization remains compliant. Everyone in the company should also receive regular safety training, especially training that is specific to their job duties. These training sessions should include proper ways to wear PPE and when and where it’s required on the job.

If you need help getting started, talk to your EHS or workplace safety consultant.

Jill Schaefer, Director of Content Management at KPA